Preliminary Hearings

Very often an employment tribunal will hold a preliminary hearing (“PH)” to organize the future progress of the case to clarify what the issues are and perhaps to dismiss (“strike out”) any of the employee’s claims which it finds to be weak.

In straightforward ordinary unfair dismissal claims, there will normally be no reason to hold a PH and once a claim has been issued and you have filed your Response, the Tribunal will send out an order setting out a series of steps which must be taken (and when they must taken) in order to get the case ready for trial.  The order will normally say when the trial will be heard.

In more complex cases, particularly those involving alleged acts of discrimination, the Tribunal will normally hold a PH. The purpose is to identify the issues to be determined at the full hearing, particularly what acts of discrimination the Claimant is relying upon, and to discuss the procedural aspects of the claim such as when witness statements should be exchanged. More generally, the aim of the PH  is to set a timetable for the parties to follow so that the case is properly prepared by the date of the trial. The trial date will be set, virtually in stone, at this hearing and it is very important that you tell the judge if there are any dates when you or your witnesses are unavailable.

In most circumstances, the Tribunal will send to the parties prior to the PH an Agenda for the parties to complete. This is in effect questionnaire designed to ensure that  the Judge knows what the issues are going to be. Where the parties are legally represented the PH may be conducted via the telephone, but it can be done face-to-face.

The Judge conducting the PH has a wide range of powers available and accordingly can make Orders that one party provides the other with further information about their claim or that either party can amend their claims. The Judge will most always make an order for disclosure i.e. an order that each side reveals what relevant documents it has in its possession and allows the other side to take a copy.

The Judge at the PH can make a costs order against one of the parties if, for example, they are not properly prepared for the hearing.

The PH is a very helpful hearing as it helps to clarify the issues, i.e. what particular claims the Claimant is bringing, and it is a good opportunity for you to request further information from the Claimant or to ask the Claimant to explain their case more fully. It is also an opportunity to discuss what medical evidence needs to be obtained in cases of disability discrimination.

Once a Judge at the PH  has made an Order, the parties must comply with it. Thus if a Claimant does not comply with an Order then the Tribunal can make a costs order against it, or make what is called an unless order.  That simply means that if a party fails to comply with an Order their claim or as the case may be, their response will be struck out for non-compliance, without further consideration.

Thus for example a Tribunal may at the PH order the Claimant to obtain a GP report on the disability s/he claims to have. If the Claimant fails to file this evidence in accordance with the Order, the Tribunal can strike out the entire disability claim.

The ET does not only make administrative orders at the PH . It has power to dismiss (“strike out”) parts of the claim and to limit what claims are heard at the full hearing. It is common for a Judge at a PH to determine whether the Claim or parts of the claim were filed within the time limits.

The striking out of a claim  has a drastic effect on the Claimant’s claim. As such the Tribunal will exercise this power with caution. This is particularly so in cases of discrimination where it will be difficult for an Employment Judge to come to a view as to the merits of a claim without first hearing all of the evidence on the issue. By way of exception to this, the Courts will strike out a discrimination case if the facts alleged by the Claimant would not amount to discrimination if the Court accepted them as true. Having said that employment lawyers up and down the country report that ETs are now sensitive to the costs imposed on employers by weak claims and are happier than they once were to hold a one day PH to consider whether the documents show that the Claimant’s discrimination claim is so weak that it should be dismissed. They prefer to do this than put themselves and the employers to the expense of a 10 day final hearing.

If the Judge at the PH is of the opinion that any part of a Claimant’s claim has little prospect of success, as opposed to no reasonable prospect of success, then he can make an order against that party requiring the party to pay a deposit of an amount not exceeding £1,000. This is a sum which must be paid into the Court but will be returned unless a costs order is made against the Claimant after the final hearing. Most Claimants will struggle to raise such a sum and therefore if the Respondent obtains such an order it will effectively bring the case to an end. For this reason, a deposit order is an important tactical weapon.

As the PH is a substantive hearing, Respondents are strongly advised to obtain legal advice and legal representation at the hearing.  The PH affords the Respondent a good opportunity to try and limit the Claimant’s claims and in certain situations have the claims struck out in their entirety.  Accordingly, the PH can be very cost effective, and it should be used to its maximum effect.


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